United States District Court, S.D. California
THEODORE J. NEWTON, Plaintiff,
S. EATMON, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT
OF COUNSEL; ORDER DENYING PLAINTIFF'S MOTION FOR
CLARIFICATION AS MOOT [DOC. NOS. 27, 29.]
KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE.
Theodore J. Newton, a state prisoner proceeding pro
se and in forma pauperis, filed this action
pursuant to Title 42, United States Code, Section 1983,
alleging that a correctional officer at the Richard J.
Donovan Correctional Facility used excessive force against
him. [Doc. No. 1.] Before the Court are plaintiffs second
Motion for Appointment of Counsel [Doc. No. 27] and
plaintiffs Motion for Clarification [Doc. No. 29]. In an
Order filed on August 13, 2019, the Court denied plaintiffs
prior Motion for Appointment of Counsel. [Doc. No. 19.] For
the reasons outlined more fully below, the Court finds that
plaintiffs Motion for Appointment of Counsel and Motion for
Clarification must be DENIED.
for Appointment of Counsel.
Motion for Appointment of Counsel, plaintiff requests that
the Court appoint counsel, because he is "clearly in
doubt" about the entire case. [Doc. No. 27.] In his
prior Motion for Appointment of Counsel, plaintiff requested
that the Court appoint counsel for several reasons. First,
plaintiff claimed that "imprisonment [would] greatly
limit his ability to litigate." [Doc. No. 11, a p. 1.]
Second, plaintiff argued that the issues in this case
"are complex and will require significant research and
investigation," and he has only "limited access to
the law library and limited knowledge of the law."
[Id.] Third, plaintiff claimed that "a trial in
this case [would] likely involve conflicting testimony, and
counsel would better enable plaintiff to present evidence and
cross examine witnesses." [Id.] Fourth,
plaintiff represented that he is unable to afford counsel.
Court explained in the prior Order of August 13, 2019, an
indigent's right to appointed counsel has been recognized
to exist "only where the litigant may lose his physical
liberty if he loses the litigation." Lassiter v.
Dep't of Soc. Servs. of Durham Cty., N. C, 452 U.S.
18, 25 (1981). District Courts generally lack authority to
require counsel to represent indigent prisoners in Section
1983 cases. Mallard v. U.S. Dist. Court for S. Dist. of
Iowa, 490 U.S. 296, 298-309 (1989). However, in certain
"exceptional circumstances," the Court may request
the voluntary assistance of counsel. Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
finding of exceptional circumstances requires an evaluation
of both the likelihood of success on the merits and the
ability of the petitioner to articulate his claims pro
se in light of the complexity of the legal issues
involved." Terrell, 935 F.2d at 1017 (internal
citations omitted). "Neither of these factors is
dispositive and both must be viewed together before reaching
a decision." Id. (internal citation omitted).
there is currently no basis to support a finding of
exceptional circumstances. First, the record is not
sufficiently developed, so the Court cannot determine the
likelihood of success on the merits. Second, there is nothing
from which the Court could conclude plaintiff lacks the
ability to articulate and prosecute his claims pro
se. Plaintiff has demonstrated a knowledge of the
essential facts supporting his claim, which appear relatively
straightforward and uncomplicated. In addition to his
Complaint, which survived the initial screening required by
28 U.S.C. §§ 1915(e)(2) and 1915A, plaintiff
opposed defendants' Motion for Summary Judgment and filed
Objections to this Court's Report and Recommendation Re
Defendants' Motion for Summary Judgment. [Doc. No. 6, at
pp. 4-7; Doc. No. 15; Doc. No. 20; Doc. No. 30.] Therefore,
plaintiff has clearly shown an ability to effectively
articulate his claims and communicate with the Court in this
a pro se prisoner's inability to afford an
attorney, standing alone, is not enough to show exceptional
circumstances. This and other hardships imposed by
incarceration "are difficulties which any litigant would
have in proceeding pro se; they do not indicate
exceptional factors." Wood v. Housewright, 900
F.2d 1332, 1335-1336 (9th Cir. 1990).
pro se litigants are afforded some leniency to
compensate for their lack of legal training. "In civil
rights cases where the plaintiff appears pro se, the
court must construe the pleadings liberally and must afford
plaintiff the benefit of any doubt." Jackson v.
Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal
citation omitted). This also applies to motions.
Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925
(9th Cir. 2003). Accordingly, plaintiff s pro se
status will be taken into consideration by the Court when his
filings are reviewed.
these reasons, the Court finds that plaintiffs second Motion
for Appointment of Counsel must be DENIED. [Doc. No. 27.]
Motion for Clarification, plaintiff requests that the Court
advise him of the status of defendants' Motion for
Summary Judgment and his Opposition thereto. [Doc. No. 29.]
Shortly before the Court received this Motion from plaintiff,
a Report and Recommendation Re Defendants' Motion for
Summary Judgment was filed in this case. [Doc. No. 25.] The
record indicates plaintiff received a copy of this Report and
Recommendation, because he recently filed Objections thereto.
Plaintiffs Objections to the Report and Recommendation
clearly indicate plaintiff is now aware of the status of
defendants' Motion for Summary Judgment. [Doc. No. 30, ]
In due course, the District Court will rule on the Report and
Recommendations and plaintiffs Objections thereto.
Accordingly, plaintiffs Motion for Clarification is moot.
foregoing reasons, the Court finds that plaintiff has not
shown there are "exceptional circumstances" for the
appointment of counsel in the case. Accordingly, IT IS HEREBY
ORDERED that plaintiffs Motion for Appointment of Counsel is
DENIED. [Doc. No. 27.] Plaintiffs Motion for Clarification is
DENIED as moot, because the record indicates plaintiff is
aware of ...